Browne C. Lewis (Cleveland State University - Clevelane-Marshall College of Law) has posted "Three Lies and a Truth: Adjudicating Maternity in Surrogacy Disputes" on SSRN. Here is the abstract:

The advances in reproductive technology have given women more reproductive choices. Women are able to rewind their biological clocks and become mothers later in life. If a woman is unable to carry a child, she may be able to utilize the services of a surrogate to become a mother. The amount of assistance the woman receives from the surrogate depends upon the state of her reproductive health. A woman who is no longer capable of producing eggs can arrange for a traditional surrogate to supply the eggs and to carry the child to term. Gestational surrogacy is an option for the woman who cannot carry the embryo made from her genetic material. Surrogacy is a great way to create a family.

If medicine is the hare, the law is the tortoise. As long as the surrogate honors the contract and surrenders custody of the child to the contracting woman, every thing goes smoothly. However, when face with custody disputes involving surrogates and contracting women, courts are not sure how to react. For courts, the resolution of traditional custody disputes is not difficult because the law is well settled. In surrogacy dispute cases, since two women are seeking to be declared the legal mother of the child, instead of deciding custody, courts have to adjudicate maternity. As a consequence of the lack of clear legislative guidance and bright line rules, courts have relied upon several different theories to decide whether the surrogate or the contracting woman should be declared the legal mother of the child. The underlying premise of three of those theories is the lie that the standard for determining maternity should be based on the actions of the women. The final theory is based upon the truth that the test for adjudicating maternity should focus upon the needs of the child.

In situations involving children born as the result of sexual intercourse, the common law rule is that the woman who gives birth to the child is the child’s legal mother. Since the woman who gives birth is also the woman who supplies the genetic material to conceive the child, the rule is relatively easy to implement. Things become more complicated when one woman gives birth to a child conceived using the genetic material of another woman. In those cases, some states follow the common law fallacy and conclude that, since she gives birth to the child, the surrogate should be recognized as the child’s legal mother. This approach is referred to as the gestational theory of maternity. Other courts believe the lie that the sole indicator of maternity should be genetics. Thus, the woman who supplies the genetic material used to creative the child should be designated as the child’s legal mother. California and other jurisdictions have embraced the untruth that maternity should be determined by relying on the intent of the parties. Therefore, the woman who signed the contract intending to parent the child should be deemed to be the child’s legal mother.

The Court that decided the Baby M case used the “best interests of the child” standard to award custody of the child. At least one judge has realized the truth. He argued that this same standard should be use to determine whether the surrogate or the contracting woman should be recognized as the child’s legal mother. For decades, courts have relied upon the “best interests of the child standard” to make decisions that impact children. Nonetheless, the standard has not been use to make initial parentage determinations. Although the standard has been around for a long time, it is still not well-developed. Neither the legislatures nor the courts have put forth a clear definition of what the “best interests of the child” means. Courts evaluate various factors to decide which outcome will promote the child’s best interests

The correct standard for adjudicating maternity is a modified version of the “best interests of the child” standard. Courts should not apply the standard to maternity adjudications cases in the same manner that they apply it in custody cases. In order to choose the maternal arrangement that will promote the child’s best interests, courts should consider the parental potential of each woman, the stability of each woman, and the investment that each woman made to ensure the child’s conception and birth. In the interest of fairness, courts should seek guidance from an independent board of experts.